Citation Nr: 1409951
Decision Date: 03/11/14 Archive Date: 03/20/14
DOCKET NO. 08-11 669 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to an increased initial rating for service-connected right tennis elbow with epicondylitis, currently evaluated as 10 percent disabling.
2. Entitlement to an increased initial rating for service-connected right ankle fracture residuals, evaluated as 10 percent disabling prior to October 22, 2008.
3. Entitlement to an increased initial rating for service-connected right ankle fracture residuals, evaluated as 20 percent disabling from October 22, 2008, to November 13, 2011, and from February 1, 2012, onward.
REPRESENTATION
Veteran represented by: Texas Veterans Commission
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
E. Woodward Deutsch, Counsel
INTRODUCTION
The Veteran served on active duty from June 1986 to June 2006.
This case comes to the Board of Veterans' Appeals (the Board) on appeal from March 2007 and March 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Waco, Texas.
The Veteran testified before the undersigned in September 2010. A transcript of the hearing is of record.
In February 2012 and June 2013, the Board remanded the Veteran's claims for additional evidentiary development.
The appeal is again REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC.
REMAND
The Veteran contends that his service-connected right elbow and ankle disorders are worse than contemplated by his currently assigned disability ratings and that higher evaluations are therefore warranted. Before the Board can reach the merits of his claims, however, further development is required. 38 C.F.R. § 19.9 (2013).
I. Clarifying Opinion
In its June 2013 Remand, the Board requested that the Veteran undergo a VA examination that would describe his right elbow and right ankle "functional loss and/or functional impairment," documented on the prior August 2012 examination, in terms of additional degrees of limitation of motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011).
Thereafter, the Veteran was afforded a September 2013 examination in which he was again found to have "functional loss and/or functional impairment" of the right elbow and right ankle. See September 2013 VA Examination at 3, 6. In this regard, the examining VA clinician noted that the Veteran displayed less movement than normal, weakened movement, and pain on movement in both his right elbow and right ankle, and that he also exhibited incoordination, impaired ability to execute skilled movements smoothly, and interference with sitting, standing, and weight bearing in his right ankle. Id. However, the VA examiner declined to quantify those factors of impairment in terms of additional degrees of right elbow and right ankle limitation of motion.
Without such findings, which are crucial to deciding the Veteran's claims, the September 2013 VA examination report is inadequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes an examination, even if not required to do so, an adequate one must be produced). Therefore, to correct these inadequacies and ensure substantial compliance with the Board's prior Remand, a clarifying opinion is needed. See Stegall v. West, 11 Vet. App. 268, 271 (1998).
II. Separate Ratings for Scars and Neurological Manifestations
In addition to obtaining an opinion that addresses the unresolved medical questions in this appeal, another Remand is required to determine whether the Veteran is entitled to separate compensable ratings for his right ankle scars and for the neurological manifestations associated his right elbow and ankle disorders. In each of its prior Remands, the Board requested that the AOJ adjudicate these matters in the first instance. However, this has yet to be accomplished. Without such initial adjudication by the AOJ, there may be prejudice in the Board proceeding with a decision as to whether separate neurological and scar ratings are warranted. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).
III. VA Treatment Records
Finally, insofar as the Veteran may have received VA treatment for his right elbow and right ankle disorders since the issuance of the October 2013 Supplemental Statement of the Case, another Remand is required so that records of such treatment may be obtained and added to the claims file. See 38 C.F.R. § 3.159(c)(2) (2013); see also Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).
Accordingly, the case is REMANDED for the following actions:
1. Obtain all treatment records from the VA North Texas Health Care System dated since September 2013.
2. If any of the records requested in item 1 are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e).
3. After completing the development outlined in items 1 and 2, the Veteran should be scheduled for an examination to assess the nature and severity of his right elbow disability.
The entire claims file (i.e., both the Veterans Benefits Management System electronic folder and any additional relevant medical records contained in Virtual VA) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review.
The examiner should specifically respond to the following:
Describe the functional loss and/or functional impairment, which was noted in both the August 2012 and September 2013 VA examinations, in terms of additional degrees of limitation of motion.
All pertinent symptomatology and findings should be reported in detail, and any indicated diagnostic tests should be accomplished. A report of the examination should be prepared and associated with the Veteran's VA claims file.
4. After completing the development outlined in items 1 and 2, the Veteran should be scheduled for an examination to assess the nature and severity of his right ankle disability.
The entire claims file (i.e., both the Veterans Benefits Management System electronic folder and any additional relevant medical records contained in Virtual VA) should be made available to and be reviewed by the examiner, and it should be confirmed that such records were available for review.
The examiner should specifically respond to the following:
Describe the functional loss and/or functional impairment, which was noted in both the August 2012 and September 2013 VA examinations, in terms of additional degrees of limitation of motion.
All pertinent symptomatology and findings should be reported in detail, and any indicated diagnostic tests should be accomplished. A report of the examination should be prepared and associated with the Veteran's VA claims file.
5. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. As part of this readjudication, the AOJ is directed to determine whether the Veteran is entitled to separate compensable ratings for status post right ankle fracture scars prior to November 14, 2011, and for neurological manifestations associated with his right ankle and right elbow disorders.
If any benefit sought on appeal remains denied, in whole or in part, provide the Veteran and his representative with a Supplemental Statement of the Case and afford them a reasonable opportunity to respond. Then return the case to the Board for further appellate review, if otherwise in order.
The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
These claims must be afforded expeditious treatment. The law requires all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. § 5109B (2013).
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Donnie R. Hachey
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).